A copy of the Invigil Terms of Use for Students is shown below for reference. Please note, terms may vary by region. Certain institutions may also use customized versions of these terms. Students should review the terms that appear each time they start an exam as those are the exact terms they must agree to at their institution in order to use Invigil.

Invigil - Student Terms of Use

Last Updated: March 1, 2022

These Terms of Use (“Terms”) are an agreement between you and DigitalDesk, Inc. (DigitalDesk), and between you and your learning institution, or your school (your “Institution”), regarding your use of Invigil®. By using Invigil, you agree to these Terms in full and that you are age 14 or older, or age 16 or older in the EEA, and if under the age of 18 and located in the United States of America, such Terms have been agreed to by your parent or guardian.

Invigil is a cloud-based service (“Invigil Services”) and software (“Invigil Software”) (also collectively referred to in these Terms as “Invigil”), that work together to provide an online interactive database of video, audio, and other data captured during student testing or assessment sessions for your Institution’s use in monitoring student participation in such sessions. The purpose of such monitoring is for your Institution to be confident that the identified individuals / students are those permitted to participate in the testing or assessment sessions, and to deter inappropriate behavior that might impact the integrity of the assessment process.

NOTE: THESE TERMS CONTAIN AN ARBITRATION AND CLASS ACTION WAIVER PROVISION IN THE “ARBITRATION” SECTION BELOW THAT AFFECTS YOUR RIGHTS UNDER THESE TERMS AND WITH RESPECT TO ANY DISPUTE BETWEEN YOU AND DIGITALDESK OR OUR AFFILIATES. BY USING INVIGIL, YOU ACKNOWLEDGE THAT YOU HAVE READ AND REVIEWED THESE TERMS IN THEIR ENTIRETY, YOU AGREE TO THESE TERMS, AND THESE TERMS CONSTITUTE BINDING AND ENFORCEABLE OBLIGATIONS ON YOU.

The following Section 1. REQUIREMENTS OF YOUR INSTITUTION is controlled by your Institution and describes the requirements and relationship between your Institution and You. It does not affect the terms between You and DigitalDesk.

1. REQUIREMENTS OF YOUR INSTITUTION

Your Institution is requiring its students to use Invigil for certain, or all, courses. In order to use Invigil, you must agree to these Terms in full.

a. HOW “INVIGIL” WILL BE USED. The use of Invigil will require individual student activity to be recorded, both audibly and visually, during certain assessment sessions. Other data related to individual student activity during assessment sessions may also be recorded by Invigil, such as, for example, without limitation, time taken by a student to answer specific inquiries on an assessment. The recordings are controlled by your Institution and will be processed by an agent of your Institution, namely, DigitalDesk, through its Invigil Services. Invigil may analyze the recordings using third-party professional proctors. The recordings may be evaluated by agents of your Institution, including your instructors, to review, assess, and analyze student performance and conduct, among other things, for the purpose of improving educational processes for students, including investigating student conduct violations. Your Institution works with DigitalDesk to help ensure your privacy regarding the recordings and to comply with applicable laws and regulations as to any information or data (including any of the video or audio recordings). See the sections below “PRIVACY” and “PRIVACY AND SECURITY POLICY”. The complete DigitalDesk Privacy Policy is available at www.digitaldeskinc.com/privacy, and we recommend that you review it carefully.

b. ACTIVITY GENERAL. You are responsible for your conduct and activities arising during use of Invigil and for any information or data you provide to or through Invigil. Neither DigitalDesk nor your Institution is responsible for, nor liable for, any mistakes, inaccuracies, lack of usefulness, defamation, omissions, falsehood, obscenity or otherwise offensive material in any of the information or data provided to Invigil by users. You also understand that your Institution does not, and has no obligation to, monitor, pre-screen nor pre-approve information or data, but that your Institution shall nonetheless have the right (but not the obligation) in its sole discretion, to refuse, delete or move any information or data that is available via Invigil, for any reason, including a violation of any of these Terms.

c. WARRANTIES YOU PROVIDE TO YOUR INSTITUTION. You warrant and represent to your Institution that you are not infringing the intellectual property rights of others whenever you provide information or data on or through Invigil. You also agree that your Institution is not responsible for protecting any intellectual property rights you, or another party, may assert in any information or data you provide to Invigil.

d. OPT-OUT. If you cease to agree with these Terms, or the privacy and security policy below at some point in the future, you may opt-out by contacting your Institution. However, opting-out may affect how you will need to complete your course, and your Institution makes no representations regarding how it will affect your relevant course or any ramifications from opt-out (e.g., you may not be able to complete the requirements of such course). As such, we encourage you to speak with your instructor before opting out.

e. DISCLAIMERS. Your Institution disclaims responsibility or liability for the accuracy, content, completeness, legality, reliability, operability or availability of information or data in the Invigil Service or Software. Your Institution further disclaims any responsibility for the deletion, failure to store, mis-delivery, or untimely delivery of any information or data. Your Institution disclaims any responsibility for any harm resulting from downloading or accessing any information or data through Invigil. You will bear all risk associated with any information or data you access. Your access or use of any information or data provided by Invigil or third parties is conditioned on your agreement to these Terms including these disclaimer provisions. Further disclaimers applicable to your relationship with your Institution, as well as with DigitalDesk, are set forth below in the DISCLAIMER section under REQUIREMENTS OF DIGITALDESK AND LICENSE PROVIDED BY DIGITALDESK.

f. PRIVACY. The section below entitled PRIVACY & SECURITY POLICY, in conjunction with the full DigitalDesk Privacy Policy available at www.digitaldeskinc.com/privacy, shall govern the privacy policy with respect to Invigil. You agree with all reservations of right(s), disclaimers of liability, promises, and acknowledgements governing your relationship with DigitalDesk under the PRIVACY & SECURITY POLICY and the full DigitalDesk Privacy Policy available at www.digitaldeskinc.com/privacy. As controller of the data, your Institution reserves the right at all times to disclose any information or data (including recordings and any content to the extent applicable) pertaining to you or any other user, as necessary, to comply with the law, a regulation or a governmental request.

g. MISCELLANEOUS. All legal issues arising from or related to the use of Invigil between you and your Institution shall be construed in accordance with the laws of the state in which your Institution resides, or if your Institution resides in more than one state, the state in which you attend your Institution, or the state in which the branch of your Institution resides with which you correspond. By using Invigil and thus agreeing to these Terms, you consent to personal jurisdiction and venue in the state and federal courts located in and serving the county in which your Institution resides, or if your Institution resides in more than one county, the county in which you attend your Institution, or the county in which the branch of your Institution resides with which you correspond. Your Institution may terminate your use of Invigil if you violate these Terms, and will terminate your use if you use Invigil to infringe on the intellectual property rights of others. If your Institution should fail to enforce any right or provision in these Terms, this failure shall not constitute a waiver of such right or provision or of any other rights or provisions in these Terms. If a court or trier of fact should find that one or more rights or provisions set forth in these Terms are invalid, you agree that the remainder of the right or provisions shall be enforceable and that, to the extent permitted by law, the court shall give effect to the parties’ intentions, as reflected in any such right or provision that has been declared invalid or unenforceable. If you do not agree to the Terms, you will not be permitted to use Invigil. Any term that would naturally survive termination of these Terms shall survive, such as, for example, the disclaimers, limitations on liabilities, and any warranties you provide herein, and this miscellaneous section.

h. Your Institution may terminate your access to Invigil at any time, if there is a violation of these Terms.

2. LICENSE REQUIREMENTS PROVIDED BY DIGITALDESK

To the extent any terms below conflict with any terms under the REQUIREMENTS OF YOUR INSTITUTION above, the terms above shall govern with respect to your relationship with your Institution and the terms below shall govern with respect to your relationship with DigitalDesk.

In addition, you acknowledge and understand that certain actions set forth in these Terms, which may be taken by DigitalDesk (as outlined below), shall be taken at the direction of your Institution with DigitalDesk acting as an agent of your Institution.

a. LICENSE GRANT AND ONLINE USE. If you accept these Terms and pay the required license fees to DigitalDesk (if required by your Institution or DigitalDesk, at its discretion, as set forth below in the Section entitled FEES), you are granted a limited, non-exclusive, non-transferable, non-assignable license to use Invigil subject to the conditions of these Terms. You may not modify, distribute, sell, or sublicense any part of Invigil. You may not reverse engineer or attempt to extract the source code of Invigil, unless laws prohibit those restrictions or you have written permission from DigitalDesk. Invigil is licensed to you, not sold or transferred to you. You agree that you may not use Invigil in any way that conflicts with or violates these Terms or other agreements between you and any third-party, including that of your Institution’s learning management system (“LMS”) through which you are accessing the Invigil Services.

b. FEES. The license grant to use Invigil is separate from the license grant to use DigitalDesk’s other learning technologies. If you are initiating Invigil for demonstration purposes only, you will not be charged. Also, DigitalDesk may grant you a temporary license free-of-charge to use Invigil, at its sole discretion (such as, for example, for beta testing or pilot program purposes), but such free license grant may be terminated at any time by DigitalDesk at its sole discretion.

c. PRIVACY & SECURITY POLICY. DigitalDesk cares about your privacy and the security of your personal data. The DigitalDesk Privacy Policy is available at www.digitaldeskinc.com/privacy, and we recommend that you review it carefully. The information below summarizes important aspects of the security used with Invigil and how we process your personal data.

Invigil uses the following methods to limit access to personal information or data (e.g., student recordings or other personal information):

• Invigil uses industry standard SSL (Secure Socket Lay) or TLS (Transport Layer Security) encryption to transfer information.
• Student identifiable information including name, grade, course name, and photos that show identification cards can only be accessed through the learning management system’s (LMS’s) extension architecture (e.g., LTI, Blackboard Building Block).
• Only users with instructor credentials for the LMS course (e.g., instructors, teaching assistants, LMS administrators) are able to view video sessions in conjunction with student identifiable information.

Video URLs are “one-time use” and will not function if copied. DigitalDesk uses independent, third-party security firms to perform penetration testing and other vulnerability scans of the Invigil system. This includes a review of the Invigil architecture and the testing for vulnerabilities and exploits. Unfortunately, no data transmission over the Internet is 100% secure, and DigitalDesk does not warrant nor guarantee the security of any information collected using its services. By agreeing to these Terms, you agree to use Invigil at your own risk, and agree that DigitalDesk shall not be liable if a security breach occurs, if the site malfunctions, or if information is misused or mismanaged in any way to your detriment or the detriment of a student or third party, whether by DigitalDesk, your institution, or an unauthorized third party.

The use of Invigil will require individual student activity to be recorded, both audibly and visually, during certain assessment sessions. Other data related to individual student activity during assessment sessions may also be recorded by Invigil, such as, for example, without limitation, time taken by a student to answer specific inquiries on an assessment. The recordings are controlled by your Institution and will be processed by an agent of your Institution, namely, DigitalDesk or its designated third-party review partner, through its Invigil Services. Invigil does not analyze the recordings through automated processes to generate additional data derived from the recordings, rather professional proctors evaluate the records with their resultant findings being associated with individual students for use by your Institution in evaluating the recordings. This additional information includes activities that rise to the level of creating suspicion flags. The additional data, as well as the original recordings, may be evaluated by agents of your Institution, including your instructors, to review, assess, and analyze student performance and conduct, and investigate alleged student conduct violations. Your Institution works with DigitalDesk to help ensure your privacy regarding the recordings and to comply with applicable laws and regulations as to any information or data (including any of the video or audio recordings). DigitalDesk personnel do not review/analyze the recordings except as may be required to resolve technical problems, improve system performance, modify Invigil, investigate violations of these Terms, or as may be directed by your Institution or applicable law enforcement.

Each student that is recorded will have a unique username or identification code (“ID”) and password through your Institution’s (or its learning institution’s) LMS or learning system. The ID and password will be usable by students, at the discretion of your Institution, to allow students to transmit recordings and data to the online component of Invigil if required by your Institution as part of an assessment activity. Instructors, administrators and other agents of your Institution, may access those recordings and data related to their students through Invigil. You must guard your password and not share it with anyone to help ensure your security and privacy of your data.

Random samples of video and/or audio recordings may be collected via Invigil and used by DigitalDesk to improve the Invigil capabilities for institutions and students. The recordings may be shared with researchers under contract with DigitalDesk to assist in such research. The researchers are consultants or contractors to DigitalDesk and are under written obligation to maintain the video and/or audio recordings in confidence and under terms at least as strict as these Terms. The written agreements with the researchers also expressly limit their access and use of the data to work being done for DigitalDesk and the researchers do not have the right to use the data for any other purposes. No personally identifiable information for students is provided with the video and/or audio recordings to researchers, such as the student’s name, course name, institution, grades, or student identification photos submitted as part of the Invigil exam session. Other than the purposes identified above, DigitalDesk will not share recordings or personally identifying information of any particular student (collectively, also referred to herein as “personal information or data”) with third parties (third parties do not include the student who provided the personal information, the parent/guardian of a student under the age of 18 who provided personal information, or the institution who authorized access by the student to Invigil Services) unless specifically required by Institution. For example, if Institution uses third parties to manage student personal information (e.g., Institution agents), the Institution may direct DigitalDesk to share the personal information with that third party under the Institution’s direction and control.

If, in the future, DigitalDesk, or substantially all of its assets are acquired, the maintenance of all collected personal information or data (including any recordings) may be transferred to the acquiring party, provided that the acquiring party implement a privacy and security policy at least as restrictive as this one, or otherwise compliant with current legal standards, and provided that the collected personal information and data remain under the control of your Institution.

DigitalDesk reserves the right at all times to disclose any information or data (including recordings and any content to the extent applicable) stored by you, your Institution, or any other user as necessary, to comply with the law, a regulation or a governmental request, or to edit or delete any information or data, in whole or in part, that in DigitalDesk’ sole discretion, is in violation of these Terms.

If you have any questions regarding the above Terms, please contact DigitalDesk by email at or by writing to:

DigitalDesk, Inc..
Attn: Legal – Privacy Team
1000 Central Parkway No., Suite 223
San Antonio, TX 78232
USA
Via email: info@digitaldeskinc.com

d. USER CONDUCT. You promise NOT to use Invigil for any of the following purposes or activities:

i. conducting or supporting illegal activity of any type whatsoever;

ii. transmitting or storing worms or viruses or any code of a destructive nature;

iii. threatening, harassing, abusing, impersonating, injuring or intimidating others;

iv. engaging in vulgar, invasive, or hateful conduct, or conduct that invades another’s privacy;

v. interfering with others’ use of Invigil, unless such interference is for the purpose of complying with another section of these Terms;

vi. delivering spam or collecting information to deliver spam, or sending unsolicited advertisements;

vii. decompiling, disassembling, reverse engineering or otherwise attempting to discover any source code contained in Invigil;

viii. disguising the origin of any content transmitted through Invigil or manipulating your presence on Invigil; and/or

ix. causing the launch of any automated system(s) that access Invigil in a manner that sends more request messages to servers of DigitalDesk in a given period of time than a human can reasonably produce in the same period by using a conventional on-line web browser.

e. DIGITALDESK USERNAME/ID AND PASSWORD POLICY. You must guard the access credentials (e.g., user name and password) that you use to access your Institution’s learning system to help ensure your own privacy and security with respect to recordings you initiate using Invigil, and not share those credentials with others.

f. ACTIVITY GENERAL. You are responsible for your conduct and activities arising during use of Invigil and for any information or data you provide to or through Invigil. You agree that DigitalDesk is not responsible for, nor liable for, any mistakes, inaccuracies, lack of usefulness, defamation, omissions, falsehood, obscenity or otherwise offensive material in any of the information or data provided to DigitalDesk by users. You also understand that DigitalDesk does not, and has no obligation to, monitor, pre-screen nor pre-approve information or data, but that DigitalDesk shall nonetheless have the right (but not the obligation) in its sole discretion, to refuse, delete or move any information or data that is available via Invigil, for any reason, including a violation of any of these Terms (however, if DigitalDesk elects to, for any reason, refuse, delete or move any recording of student activity for violation of these Terms, DigitalDesk may save a copy of such recording for access by the Institution).

g. LICENSE PROVIDED TO DIGITALDESK. Invigil will save all recordings of students for the period of time designated by your Institution. Institutions have the ability to select a data retention period between thirty (30) days and five (5) years. DigitalDesk does not claim ownership in the information or data your Institution or any students provide; however, by providing information or data to DigitalDesk, you grant DigitalDesk, and its affiliates, a fully paid-up, perpetual license to use, store, modify, copy, and transmit any such information or data for the purpose of carrying out the Invigil Services in accordance with these Terms.

h. CHANGES. Except as provided in the Arbitration Agreement below, DigitalDesk reserves the right to change these Terms at any time, at its discretion, without advance notice to you, but by posting the new version of these Terms within the Invigil Software. DigitalDesk also reserves the right to terminate Invigil at any time after the end of your current license, without notice; however, if your license is a free license, DigitalDesk reserves the right to terminate your license at any time without notice. If your Institution terminates use of Invigil during your current license, such that you no longer require use of Invigil, no refunds will be due or available.

i. WARRANTIES YOU PROVIDE. You warrant and represent during the term of this agreement to DigitalDesk that you are not infringing the intellectual property rights of others whenever you provide information or data on or through Invigil. You also agree that DigitalDesk is not responsible for protecting any intellectual property rights you, or another party, may assert in any information or data you provide to Invigil.

j. OPT-OUT. If you cease to agree with these Terms, or the privacy and security policy at some point in the future, you may opt-out by contacting your Institution. However, opting-out may affect how you will need to complete your course, and DigitalDesk makes no representations regarding how it will affect your relevant course or resulting grade. As such, we encourage you to speak with your instructor before opting out. Additionally, you cannot opt-out of the Arbitration Agreement if you elect to use Invigil. DigitalDesk also cannot opt-out of the Arbitration Agreement.

k. DISCLAIMERS. DigitalDesk disclaims responsibility or liability for the accuracy, content, completeness, legality, reliability, operability or availability of information or data in Invigil. DigitalDesk further disclaims any responsibility for the deletion, failure to store, mis-delivery, or untimely delivery of any information or data. DigitalDesk disclaims any responsibility for any harm resulting from downloading or accessing any information or data through Invigil. You will bear all risk associated with any information or data you access. Your access or use of any information or data provided by Invigil or third parties in connection with Invigil is conditioned on your agreement to these Terms including these disclaimer provisions.

INVIGIL IS PROVIDED TO YOU, “AS IS,” WITH NO WARRANTIES WHATSOEVER. ALL EXPRESS, IMPLIED, AND STATUTORY WARRANTIES, INCLUDING, WITHOUT LIMITATION, THE WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, AND NON-INFRINGEMENT, ARE EXPRESSLY DISCLAIMED. TO THE FULLEST EXTENT PERMITTED BY LAW, DIGITALDESK DISCLAIMS ANY WARRANTIES FOR THE SECURITY, RELIABILITY, TIMELINESS, AND PERFORMANCE OF INVIGIL. DIGITALDESK SIMILARLY DISCLAIMS, TO THE FULLEST EXTENT PERMITTED BY LAW, ANY WARRANTIES FOR ANY INFORMATION OR ADVICE OBTAINED THROUGH INVIGIL.

YOU UNDERSTAND AND AGREE THAT ANY INFORMATION OR DATA DOWNLOADED OR OTHERWISE OBTAINED THROUGH THE USE OF INVIGIL IS OBTAINED AT YOUR OWN DISCRETION AND RISK AND THAT YOU WILL BE SOLELY RESPONSIBLE FOR ANY DAMAGES TO YOUR COMPUTER SYSTEM OR LOSS OF DATA THAT MAY RESULT IN THE DOWNLOAD OF SUCH INFORMATION OR DATA. UNDER NO CIRCUMSTANCES SHALL DIGITALDESK BE LIABLE TO ANY USER ON ACCOUNT OF THAT USER’S USE OR MISUSE OF AND RELIANCE ON INVIGIL. SUCH LIMITATION OF LIABILITY SHALL APPLY TO PREVENT RECOVERY OF DIRECT, INDIRECT, INCIDENTAL, CONSEQUENTIAL, SPECIAL, EXEMPLARY, AND PUNITIVE DAMAGES (EVEN IF DIGITALDESK HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES). SUCH LIMITATION OF LIABILITY SHALL APPLY WHETHER THE DAMAGES ARISE FROM USE OR MISUSE OF AND RELIANCE ON INVIGIL, FROM INABILITY TO USE THE INVIGIL, OR FROM THE INTERRUPTION, SUSPENSION, OR TERMINATION OF INVIGIL OR BY REASON OF ANY INFORMATION OR ADVICE RECEIVED THROUGH INVIGIL. THE FOREGOING DISCLAIMERS, WAIVERS AND LIMITATIONS SHALL APPLY NOTWITHSTANDING ANY FAILURE OF ESSENTIAL PURPOSE OF ANY LIMITED REMEDY.

l. INTELLECTUAL PROPERTY. All web design, text, graphics, the selection and arrangement thereof, and all software compilations, underlying source code, software and all other material on Invigil are either the copyright or trademark of DigitalDesk, or covered by other intellectual property rights of DigitalDesk or a third party licensor of DigitalDesk. Any use of Invigil beyond the purpose indicated above is strictly prohibited. You shall not acquire any rights in DigitalDesk’s intellectual property by using Invigil.

m. MISCELLANEOUS. Except as otherwise specified in these Terms, all legal issues arising from or related to the use of Invigil between you and DigitalDesk shall be construed in accordance with the laws of the State of Texas, without regard to conflicts of law principles. DigitalDesk may terminate your use of Invigil if you violate these Terms, and will terminate your use if you use Invigil to repeatedly infringe on the intellectual property rights of others. These Terms constitute the entire agreement between the parties with respect to the subject matter contained herein and supersede any other agreements between DigitalDesk and you regarding Invigil. If DigitalDesk should fail to enforce any right or provision in these Terms, this failure shall not constitute a waiver of such right or provision or of any other rights or provisions in these Terms. If a court should find that one or more rights or provisions set forth in these Terms are invalid, you agree that the remainder of the rights or provisions shall be enforceable and that, to the extent permitted by law, the court shall give effect to the parties’ intentions, as reflected in any such right or provision that has been declared invalid or unenforceable. If you do not agree to the Terms, you will not be permitted to use this Service. Any term that would naturally survive termination of these Terms shall survive, such as, for example, the DISCLAIMERS, WARRANTIES YOU PROVIDE, and this MISCELLANEOUS section.

3. DISPUTES, GOVERNING LAW, VENUE and JURISDICTION

By using Invigil, you agree that these Terms shall be governed by the laws of the State of Texas USA without regard to its conflict of law provisions. For any cause of action initiated against DigitalDesk relating to these Terms, you and DigitalDesk agree to submit to the exclusive and personal jurisdiction of the court system for San Antonio, Texas USA.

4. ARBITRATION

DigitalDesk operates in interstate commerce and this Arbitration Agreement is a contract evidencing a transaction involving commerce that is governed by the Federal Arbitration Act (“FAA”), 9 U.S.C. §§ 1 et seq. This Agreement contains the rules and procedures that you must follow to resolve any disputes between you and DigitalDesk—please read it carefully. It contains procedures for MANDATORY BINDING ARBITRATION AND A CLASS ACTION WAIVER. You agree that, by agreeing to these Terms of Use, the U.S. Federal Arbitration Act governs the interpretation and enforcement of this provision, and that you and DigitalDesk are each waiving the right to a trial by jury or to participate in a class action.

Scope of Arbitration Agreement. You acknowledge and agree that any dispute or claim relating in any way to your access or use of Invigil or to any other aspect of your relationship with DigitalDesk will be resolved by binding arbitration, rather than in court, except that (1) you may assert claims in small claims court if your claims qualify, so long as the matter remains in such court and advances only on an individual (non-class, non-representative) basis; and (2) you or DigitalDesk may seek equitable relief in court for infringement or other misuse of intellectual property rights (such as trademarks, trade dress, domain names, trade secrets, copyrights, and patents). This Arbitration Agreement shall apply, without limitation, to all claims that arose before this or any prior agreement. NOW OR IN THE FUTURE, THERE MAY BE LAWSUITS AGAINST DIGITALDESK ALLEGING CLASS, COLLECTIVE, AND/OR REPRESENTATIVE CLAIMS. SUCH CLAIMS, IF SUCCESSFUL, COULD RESULT IN SOME MONETARY RECOVERY TO YOU. THE EXISTENCE OF SUCH CLASS, COLLECTIVE, AND/OR REPRESENTATIVE LAWSUITS DOES NOT MEAN THAT SUCH LAWSUITS WILL ULTIMATELY SUCCEED. BUT IF YOU AGREE TO ARBITRATION WITH DIGITALDESK, YOU ARE AGREEING IN ADVANCE THAT YOU WILL NOT PARTICIPATE IN OR SEEK TO RECOVER MONETARY OR OTHER RELIEF UNDER SUCH CLASS, COLLECTIVE, AND/OR REPRESENTATIVE LAWSUITS. INSTEAD, BY AGREEING TO ARBITRATION, YOU MAY BRING YOUR CLAIMS AGAINST DIGITALDESK IN AN INDIVIDUAL ARBITRATION PROCEEDING. IF SUCCESSFUL ON SUCH CLAIMS, YOU COULD BE AWARDED MONEY OR OTHER RELIEF BY AN ARBITRATOR.

Arbitration Rules and Forum. This Arbitration Agreement is governed by the Federal Arbitration Act in all respects. To begin an arbitration proceeding, you must send a letter requesting arbitration and describing your claim to Secretary of Corporation, 1000 Central Parkway No., Suite 223, San Antonio, Texas 78232. The arbitration will be conducted by the American Arbitration Association (“AAA”) under its rules, including the AAA’s Supplementary Procedures for Consumer-Related Disputes. The AAA’s rules are available at www.adr.org or by calling the AAA at 1-800-778-7879. Payment of all filing, administration, and arbitration fees will be governed by the AAA’s rules. DigitalDesk will not seek attorneys’ fees and costs in arbitration unless the arbitrator determines the claims are frivolous. If the AAA is not available to arbitrate, the parties will select an alternative arbitral forum.

Arbitrator Powers. The arbitrator, and not any federal, state, or local court or agency, shall have exclusive authority to resolve any dispute relating to the interpretation, applicability, enforceability or formation of this Arbitration Agreement including, but not limited to any claim that all or any part of this Arbitration Agreement is void or voidable. The arbitration will decide the rights and liabilities, if any, of you and DigitalDesk. The dispute will not be consolidated with any other matters or joined with any other cases or parties. The arbitrator will have the authority to grant motions dispositive of all or part of any claim or dispute. The arbitrator will have the authority to award monetary damages and to grant any non-monetary remedy or relief available to an individual under applicable law, the arbitral forum’s rules, and these Terms. The arbitrator will issue a written award and statement of decision describing the essential findings and conclusions on which the award is based, including the calculation of any damages awarded. The arbitrator has the same authority to award relief on an individual basis that a judge in a court of law would have. The award of the arbitrator is final and binding on you and DigitalDesk.

Waiver of Jury Trial. YOU AND DIGITALDESK EACH KNOWINGLY AND VOLUNTARILY WAIVE ANY CONSTITUTIONAL AND STATUTORY RIGHTS TO SUE IN COURT AND RECEIVE A JUDGE OR JURY TRIAL. You and DigitalDesk are instead electing to have claims and disputes resolved by arbitration. An arbitrator can award on an individual basis the same damages and relief as a court and must follow these Terms as a court would. However, there is no judge or jury in arbitration, and court review of an arbitration award is limited. In any litigation between you and DigitalDesk over whether to vacate or enforce an arbitration award, you and DigitalDesk waive all rights to a jury trial, and elect instead to have a judge resolve the dispute.

Waiver of Class or Consolidated Actions. ALL CLAIMS AND DISPUTES WITHIN THE SCOPE OF THIS ARBITRATION AGREEMENT MUST BE ARBITRATED ON AN INDIVIDUAL BASIS AND NOT ON A CLASS, COLLECTIVE, REPRESENTATIVE, OR AGGREGATE BASIS. CLAIMS OF MORE THAN ONE CUSTOMER OR USER CANNOT BE ARBITRATED OR LITIGATED JOINTLY OR CONSOLIDATED WITH THOSE OF ANY OTHER CUSTOMER OR USER. THE ARBITRATOR MAY NOT CONSOLIDATE PROCEEDINGS ON MORE THAN ONE PERSON’S OR ENTITY’S CLAIMS, AND MAY NOT OTHERWISE AUTHORIZE OR PRESIDE OVER ANY FORM OF A CLASS, COLLECTIVE, REPRESENTATIVE OR AGGREGATE PROCEEDING. Claims of two or more persons or entities may not be joined or consolidated in the same arbitration because the arbitrator may only hear your individual claims and does not have the authority to hear claims on a class, collective, representative, or aggregate basis, or to award relief to anyone other than you and/or DigitalDesk in a single arbitration. If any provision of this paragraph is determined to be unenforceable with respect to any claim or any particular remedy for a claim, then that claim or particular remedy (and only that claim or remedy) must remain in court and be severed from any arbitration.

Exclusive Venue. To the extent the parties are permitted under these Terms to initiate litigation in a court, both you and DigitalDesk agree that all claims and disputes arising out of or relating to the Agreement will be litigated exclusively in the state or federal court system for San Antonio, Texas USA.

YOU SHOULD READ THE PROVISIONS OF THIS AGREEMENT CAREFULLY, AS IT PROVIDES THAT VIRTUALLY ANY DISPUTE RELATED TO DIGITALDESK MAY BE RESOLVED ONLY THROUGH BINDING ARBITRATION. ARBITRATION REPLACES THE RIGHT TO GO TO COURT, INCLUDING THE RIGHT TO A JURY TRIAL AND THE RIGHT TO PARTICIPATE IN A CLASS, COLLECTIVE, REPRESENTATIVE, OR AGGREGATE ACTION OR SIMILAR PROCEEDING.

YOU ACKNOWLEDGE THAT YOU HAVE RECEIVED AND READ OR HAVE HAD THE OPPORTUNITY TO READ THIS ARBITRATION AGREEMENT. YOU UNDERSTAND THAT THIS ARBITRATION AGREEMENT REQUIRES THAT DISPUTES THAT INVOLVE THE MATTERS SUBJECT TO THE AGREEMENT BE SUBMITTED TO ARBITRATION PURSUANT TO THE ARBITRATION AGREEMENT RATHER THAN TO A JUDGE AND JURY IN COURT.

YOU AGREE THAT YOU INTEND TO BE BOUND BY THE AGREEMENT AND SPECIFICALLY THE ARBITRATION PROVISIONS SET FORTH ABOVE.

5. DIGITALDESK HELP CENTER TERMS OF USE (“HELP CENTER TERMS”)

Accepting the Terms

In order to use the Help Services, you must first agree to the terms (“Help Center Terms”) as outlined herein. You may not use the Help Services if you do not accept the Help Center Terms. You can accept the Help Center Terms by: (A) clicking to accept or agree to the Help Center Terms, where this option is made available to you by DigitalDesk in the user interface of the Help Services or other DigitalDesk services; or (B) by otherwise using the Help Services. In any case, you understand and agree that DigitalDesk will treat your use of the Help Services as acceptance of the Help Center Terms.

Data Collection

DigitalDesk collects data to operate effectively and to strive to provide you with the best experience with Invigil. You provide some of this data directly, such as when you contact us for support. Some data is obtained by recording how you interact with Invigil by, for example, receiving error reports or usage data from software running on your device. The data we collect depends on the features you use within the Help Services, and includes the following:

Webcam & Microphone Check. The webcam and microphone check streams video and audio from your webcam to the DigitalDesk servers. The video and audio are available in the user interface to ensure the webcam and microphone are working properly. The video and audio recorded during the webcam and microphone check is stored together with the exam session recording on the Invigil server.

System Check. The System Check gathers certain information from your computing device, the networking environment, the institution’s Learning Management System, and the Invigil server itself.

All data gathered during the System Check is presented to you on your screen. The System Check does NOT contain username, user ID, or the password used to access the institution’s Learning Management System.

DigitalDesk may use System Check data and log files to assist you with a technical issue. DigitalDesk may also aggregate and analyze the System Check data to, for example, improve the Software or its technical support services. System Check data and log files aren’t sold, distributed, or made available to affiliate or third party businesses. Report An Issue. The Report An Issue feature enables you to provide feedback to DigitalDesk about Invigil. System Check data and log files, as described above, are collected by DigitalDesk during this process. You are informed of this transfer of data each time the Report An Issue feature is used. You may choose, but you are not required, to provide an email address and contact information when using this feature. System Check data, log files, contact information, and feedback you provide may be sent to a DigitalDesk web server or third-party cloud server for storage and further processing by DigitalDesk. No data transmitted to DigitalDesk from the Report An Issue feature will be sold, distributed, or made available to affiliate or third party businesses.

Knowledge Base. A link to a knowledge base is included with the Help Services. No individual data is collected by DigitalDesk during the use of the knowledge base, although DigitalDesk may analyze aggregated usage data of the knowledge base to improve the service.

Technical Support. The Help Services contains a link that enables users to open a live support chat window with DigitalDesk or its designated third-party representative. You must enter your name and a valid email address through which communication with the DigitalDesk support team will occur. Throughout the support process, you may, at your own discretion, provide personally identifiable information that will be used by the DigitalDesk support team to analyze the issue and communicate with you. All communication between you and the DigitalDesk team is stored on a DigitalDesk web server, and may be used by DigitalDesk to improve Invigil.

Express Incorporation. All conditions set forth in these Invigil Terms, including the DIGITALDESK PRIVACY POLICY at www.digitaldeskinc.com/privacy, and the sections PRIVACY & SECURITY POLICY, USER CONDUCT, DIGITALDESK USERNAME/ID AND PASSWORD POLICY, ACTIVITY GENERAL, CHANGES, WARRANTIES YOU PROVIDE, OPT-OUT, DISCLAIMERS, INTELLECTUAL PROPERTY, and MISCELLANEOUS are expressly included in these Help Center Terms to the extent applicable. DigitalDesk will not use data collected via the Help Services in any way that conflicts with the Invigil Terms of Use. You also expressly agree not to use the Help Services in any way that conflicts with any of the Invigil Terms of Use, including, for example, the prohibitions set forth in the USER CONDUCT section. DigitalDesk cannot make representations regarding the security of information you transmit through a third party email service provider while using the Help Services; however, to the extent DigitalDesk stores any such information, the storage of such information by DigitalDesk will be compliant with the PRIVACY & SECURITY POLICY and the DIGITALDESK PRIVACY POLICY at www.digitaldeskinc.com/privacy.

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